Notes on Guideline 1 – child involved in a case in the Family Division of the Children's Court

Notes on Guideline 1 – child involved in a case in the Family Division of the Children's Court

Guideline 1.1 – Children under the age of 10 years and children aged 10 years or more whom the court determines are not mature enough to give instructions

(a) Guideline guid​ance notes

For Victoria Legal Aid (VLA) to fund legal assistance under guideline 1.1:

  • the child must be under 10 years and the court must have made an order under s. 524(4) of the Act (ie that it is in the child’s best interests to be legally represented), or
  • the child must be 10 years or more and the court must have made orders under both s. 524(1B) of the Act (ie that they are not mature enough to give instructions) and s. 524(4) of the Act (ie that it is in the child’s best interests to be legally represented), and
  • the court must have referred the matter to VLA, and
  • VLA must consider that it is appropriate to fund legal assistance.

(b) Other eligibility c​riteria

VLA does not apply the means test to, and does not require a financial contribution from, a child or their spouse or de facto partner (if applicable).

VLA will assess whether the State reasonableness test is satisfied. Generally this test will be assessed as satisfied where a s. 524(4) order has been made.

(c) Grants assessment process

Lawyers do not apply for a grant of assistance under guideline 1.1. Where a s. 524(4) order has been made and the Children’s Court (Family Division) requests VLA to arrange legal representation for the child, VLA will allocate the initial broadband grant of legal assistance to a lawyer on the s. 29A Children’s Court panel.

(d) Documentary requirements

After a ‘best interests’ lawyer is allocated to work on a matter funded under guideline 1.1, the lawyer’s file should include:

  • a copy of the s. 524(4) order and s. 524(1B) order (if applicable) – which VLA will provide to the allocated lawyer
  • the basis on which they believe actions to be in the best interests of the child
  • all other relevant notes, supporting evidence and documents as identified in the documentary requirements section.

Lawyers are also encouraged to complete a State family matter worksheet for child applicants if applying for any extensions to the initial broadband grant.

Guideline 1.2 – Children aged 10 years and older

(a) Guideline guidance notes

VLA may grant legal assistance to a child in the Children’s Court (Family Division), provided the child is sufficiently mature to give instructions to a lawyer. VLA will generally consider a child aged 10 years or older to be mature enough to give instructions.

Exceptions include:

  • where a judicial officer determines that a child aged 10 years or more is not mature enough to give instructions under s. 524(1B) of the Act – then guideline 1.1 will apply
  • where a young person under 18 years is involved in a Children’s Court (Family Division) case in their capacity as a parent – then guideline 2.1 will apply.

(b) Other eligibility criteria

The VLA means test does not apply to a child or any spouse or de facto partner (if applicable).

The State reasonableness test needs to be satisfied. Where a child applicant:

  • is not initiating a proceeding – this test should be assessed as satisfied, or
  • is initiating a proceeding – then an assessment must be made as to whether the test is met (including the cost/benefit and merit criteria of this test).

(c) Grants assessment process

Applications for a broadband grant of legal assistance under guideline 1.2 can be lodged via the ATLAS simplified grants ‘new application’ template (under ‘Costs & Disbursements’ select the ‘Initial Lump Sum Fee’ option).

(d) Documentary requirements

The lawyer’s file should include:

  • a reference to guideline 1.2
  • the practitioner’s assessment of the child’s capacity to give instructions
  • all other relevant notes, supporting evidence and documents as identified in the documentary requirements section.

Lawyers are also encouraged to complete a State family matter worksheet for child applicants.

Interim stage extensions

(a) IAO extensions (other than contested hearings)

The extent of legal assistance available under a broadband grant under guideline 1 is discussed in Notes on fees and other costs payable in state family matters.

It includes fees for, among other things, four IAO appearances and four adjourned IAOs (but IAO appearances/adjournments where a costs order is made in favour of the client are not counted in this limit).

An application for extensions for additional IAO appearances and/or adjournments during the interim stage can be made using the ATLAS ‘extension’ template (under ‘Costs & Disbursements’).

Unlike adult applicants, the grounds for extension where an applicant is a child are not limited (and do not require extraordinary circumstances or interim breach proceedings). However, where more than three IAO extensions are applied for, then the lawyer should attach correspondence explaining why the proceedings have been protracted and further extensions are required.

(b) Interim and final contested hearings

With hearings of more than five days being VLA assessed and requiring a completed worksheet and copies of relevant reports to be provided, where a child is to be represented in:

  1. interim contest by evidence – an extension application is to be submitted via the ATLAS simplified grants ‘extension’ template. The lawyer will need to apply for:
  • the first five days of hearing – which can be recommended by the lawyer, and
  • if the hearing will exceed five days – the lawyer will also need to apply for the additional hearing days. The application will be VLA assessed and the lawyer will be required to lodge with the application:

Note: Where an uplift fee is being claimed for an IAO contest by submissions, this is applied for retrospectively as a non-standard disbursement as described in Notes on fees and other costs payable.

  1. a final contested hearing – an extension application is to be submitted via the ATLAS simplified grant ‘extension’ template. The lawyer will need to apply for:
  • the first five days of hearing – which can be recommended by the lawyer, and
  • if the hearing will exceed five days – the lawyer will also need to apply for the additional hearing days. The application will be VLA assessed and the lawyer will be required to lodge with the application:

If it is known before the final contested hearing that the hearing will take more than five days, the lawyer should apply for the additional hearing days as early as possible prior to the hearing date. If the final contested hearing unexpectedly exceeds five days, then the lawyer should lodge a further extension application as soon as it becomes apparent that the initial five day grant will not be sufficient.

As previously noted, where a child applicant is not initiating proceedings, the State reasonableness test should be assessed as satisfied.